Law360's midyear snapshot of intellectual property opinions issued by the Federal Circuit reveals four firms that are proving to be aces at oral arguments, racking up wins in high-stakes, bet-the-company battles before the federal appeals court.
Latham & Watkins LLP came out on top of Law360's midyear scorecard of firms that presented at oral arguments before the Federal Circuit, scoring eight wins and an 80 percent success rate before the federal appeals court in intellectual property cases in the first half of 2015.
Fish & Richardson PC, Kirkland & Ellis LLP and Morrison & Foerster LLP weren't far behind, each racking up five wins before the Federal Circuit in the first half of the year.
In high-stakes intellectual property cases, a number of law firms will often work together on a Federal Circuit appeal, and the attorney handling oral arguments will be aided by Federal Circuit experts at other firms.
But few law firms can take on a large number of oral arguments before the Federal Circuit in a short period, and the four firms that top Law360's scorecard all have a deep bench of attorneys who regularly appear before the federal appeals court in intellectual property cases, rather than just one talented attorney who handles all the firm's oral argument duties.
Latham & Watkins says the eight wins the firm has so far notched at the Federal Circuit in 2015 reflects the firm's work to bring together a strong intellectual property practice that can successfully tackle oral arguments at every level for a variety of clients and industries.
"What this shows is the fruits of the labor of building a group of first-chair IP trial lawyers and marquee, top-shelf appellate lawyers into one IP practice," Doug Lumish, the IP practice co-chair at Latham & Watkins, said.
Racking up wins from oral arguments is all about preparation, Federal Circuit aces say. And that preparation often starts long before the attorneys stand before the three-judge panel. It's important to carefully lay the foundation for a good oral argument, and make sure the briefs make the strongest possible case.
"Good oral advocacy is most effective when it's in support of a good brief," John O'Quinn, a partner at Kirkland & Ellis LLP, said.
There's only so much an oral argument, even a stellar one, can sway a court if the case isn't clearly made in the briefing. A carefully crafted brief sets the stage for a strong performance before a tough Federal Circuit panel, attorneys say.
"We are doing an outstanding job, but we recognize that it all starts on paper," John A. Dragseth, a principal at Fish & Richardson, said.
It also helps if the advocate who is presenting at oral arguments has a deep knowledge of the minutia of the case, attorneys say, particularly in intellectual property cases, where tiny details can often change the course of litigation.
Dominick A. Conde, a partner at Fitzpatrick Cella Harper & Scinto frequently seen at oral arguments before the Federal Circuit, said that while the firm is sometimes called on to parachute into a case at the appellate level, the firm's attorneys often guide a case all the way from trial court through a Federal Circuit appeal.
In those cases, the attorney who handles Federal Circuit oral arguments is often the attorney who tackled arguments at trial before the lower court, which can make preparations for an appellate argument far more straightforward, particularly in fact-intensive intellectual property fights.
"Typically speaking, the person who does the trial also does the appeal and the oral arguments," Conde said. "That person is intimately familiar with the facts of the case, which I think is incredibly important."
The firms on Law360's midyear scorecard also said they swear by their use of a sophisticated moot court process to prepare for oral arguments.
Latham & Watkins, for example, has built a mock courtroom in its Washington, D.C., office, with a bench big enough for a panel of lawyers that knows the cases and the issues at stake and is ready to mercilessly grill an oral arguer. Sometimes a client will also participate in the moot court, serving as a judge.
"If you're well-prepared and can survive our moot process, you're going to be fine before the appellate court," Lumish said.
Some high-profile cases may yet shake up the Federal Circuit scorecard for law firms over the course of 2015. Top advocates are still waiting on the Federal Circuit to issue a number of opinions in high-profile cases, and the court has also been flooded with a surge in appeals from a new type of patent review proceeding at the U.S. Patent and Trademark Office. Law360's analysis of the opinions issued so far in 2015 shows that precedential opinions and opinions that reverse lower courts' rulings often take longer for the Federal Circuit to decide.
But for now, top Federal Circuit practitioners say they are keeping their noses to the grindstone and watching for hints in other cases for how best to prepare for future arguments.
"We do a lot of these cases, and we keep our finger close to the pulse of the court," Dragseth said. "We listen to all the oral arguments. We summarize them. We try to stay ahead of issues. We think that helps us get ahead of the law."
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